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In a case where the federal trial judge ruled that the plaintiff's claim for a defective medical device survived a preemption challenge but still dismissed the case over a failure to sufficiently allege causation, CCL filed its reply brief, explaining that the complaint satisfied even the most rigorous causation pleading requirements despite being at a disadvantage because further details were only available after discovery could take place.

In Martin v. Medtronic, Inc., the plaintiff suffered through five years of debilitating pain because the pain medicine dispenser implanted into him had constant cycles of over- and under-infusion due to manufacturing defects. When his physician received permission to replace the device with a newer model, the illnesses that afflicted the plaintiff immediately ceased. The problems the plaintiff suffered mirrored those identified in warning letters, recalls, and inspections from the FDA, demonstrating the causal connection needed to state a valid claim. Nonetheless, the District Court insisted on even greater specificity to survive a motion to dismiss. This, the CCL brief on behalf of the plaintiff, was error.

CCL President Robert S. Peck participated in the July 21 meeting of the advisory board to the Civil Justice Research Initiative, a joint project of the law schools at the University of California at Berkeley and at Irvine. Chaired by Berkley Law Dean Erwin Chemerinsky, the Initiative focuses its research work on access to justice issues.

The July meeting, among other issues, considered further outreach from its April symposium at Berkeley on "What's Happening in Federal Court," an outgrowth of research by University of Connecticut professors Alexandra Lahav and Peter Seigelman, which explored a precipitous decline in plaintiff win rates in federal court. Peck participated in the symposium as both a moderator and a panelist.

The next CJRI symposium will take place on September 28 and explore legal issues surrounding gun violence.

CCL President Robert S. Peck told Washington Lawyer magazine that U.S. Supreme Court Justice Anthony Kennedy may have erased much of his legacy by announcing his retirement at the end of the most recent term, rather than wait just a bit longer, in an interview today.

With a nomination likely to be made very quickly and a Senate majority pledging to confirm any nominee before the 2018 midterm election, the expectation is that Justice Kennedy will be replaced with a far more doctrinaire conservative. That means that many of the issues upon with Justice Kennedy joined the Court's more liberal justices to form a 5-4 majority are in danger of being overturned. Other cases in which he wrote on behalf of the more conservative wing of the Court may turn in a more rigid direction without his moderating influence. When combined with Justice Kennedy's approach to questions presented in cases, where he focused on deciding the case but rarely defined doctrine or imposed a three-part test, Kennedy's nearly three decades on the Court where he was often the decisive swing vote, could become more of a footnote to the judicial revolution that could take place with a clear majority of committed conservative justices, Peck told Sarah Kellogg of the DC Bar's magazine.

Though plainly conservative, Kennedy had a tendency when deciding rights-based cases to employ an almost mystical phraseology, based on concepts of dignity and liberty that lacked the type of rigor he brought to issues of constitutional structure. Had the justice waited until after the midterm election, Peck speculated, the politics of the confirmation process would have changed and forced the president to consider a more moderate nominee, one more in the mold of Justice Kennedy, than he is likely to choose at this time.

CCL President Robert S. Peck attended the 2018 Annual Meeting of the American Law Institute in Washington, DC on May 21-22. At the meeting, members debated and approved new Restatements of the Law on Liability Insurance and Intentional Torts to Persons. In addition, the ALI made further progress on the Restatement on tort liability for economic harm. THE ALI publishes the final restatements, which are very influential in the states in how the law might be modernized. ALI members are experienced lawyers, judges, and academics.

In addition to the work of the ALI, Justice Ruth Bader Ginsburg was awarded the Henry J. Friendly Medal for her contributions to the law. Chief Justice John G. Roberts, Jr., a former law clerk to Judge Friendly, presented the medal to Justice Ginsburg. At an evening session, attendees were treated to a conversation between Justice Elena Kagan and former Solicitor General Paul Clement about the workings of the Solicitor General's office, moderated by Duke law dean David Levi.

CCL's Robert S. Peck attended the Annual Leaders Forum Retreat held by the American Association for Justice in Einskerry, County Wicklow, Ireland. The retreat, at which Peck has served as a speaker in the past, featured prominent Irish legal figures speaking about their civil justice system.

As a member of the committee, CCL President Robert S. Peck attended a rare meeting of the ABA Amicus Curiae Committee in Washington, DC, where the Committee discussed plans to streamline its process and continue to assure quality briefing. ABA President Hillary Bass attended the meeting and was joined at the committee dinner by ABA President-elect Robert Carlson.

CCL President Robert S. Peck participated in the Spring meetings of the American Association for Justice (AAJ). As a member of the Legal Affairs Committee, Peck heard reports about AAJ's activities to support access to the courts and the right to trial by jury. He gave his own report on some of the litigation developments of particular interest to AAJ members. Among items in his report were recent victories about limiting the use of discovery to litigation and not lobbying purposes, a Minnesota Court of Appeals decision that reversed the dismissal of a complaint in a medical device case on preemption grounds, and a trial court ruling that New Mexico's medical malpractice cap violates jury-trial rights.

Representing the Arkansas Supreme Court, its chief justice, and two other justices of that court, CCL filed a motion for a temporary stay of discovery pending resolution of its motion to dismiss the case in the U.S. District Court for the Eastern District of Arkansas. The state supreme court and each of its justices were sued by a state trial court judge, alleging that his civil rights were violated when the high court ordered he be recused. The plaintiff-judge had participated in a protest and written a blog post related to a case then pending before him. The Supreme Court, upon a motion from the state attorney general, ordered the judge recused in that case and all similar matters.

CCL filed a motion to dismiss, arguing that the Eleventh Amendment foreclosed suit against the state supreme court in federal court without its consent. Moreover, the lawsuit failed to state a claim because, among other things, the judge had no property right in hearing particular cases. The due process rights of the litigants to a fair tribunal that has not pre-judged the matter predominated over any right the judge might claim. Similar motions to dismiss were filed by other counsel on behalf of the remaining justices.

The plaintiff-judge has made clear that he seeks discovery that will delve into the internal deliberations of the court on the recusal order. The motion to stay, filed on behalf of all defendants, asks that the dismissal motions be determined before discovery commences.

The U.S. Supreme Court today ended pharmaceutical manufacturer Johnson & Johnson’s bid to avoid liability for failing to warn doctors and parents that the appearance of redness, rashes or blisters after taking Children’s Motrin can lead to serious consequences. In 2003, a feverish seven-year-old Sammie Reckis was administered Children’s Mortin by her father. When she received no relief, her pediatrician administered another dose. Sammie was taken to the hospital after blisters began to appear, where yet another dose was given. Blisters soon appeared all over her body, and she was diagnosed with Toxic Epidermal Necrolysis (TEN), a life-threatening skin disorder that is usually fatal. The top layer of her skin began drying and sloughing off in sheets and, to ease her pain, Sammie was placed into a medically induced coma. She suffered heart and liver failure, a stroke, an aneurysm, and a cranial hemorrhage. She is now a tremendously underweight, blind adult. A jury found Johnson & Johnson liable and set compensation for Sammie and her family at $63 million.

Johnson & Johnson, after losing in the Massachusetts Supreme Judicial Court, asked the U.S. Supreme Court to take the case, claiming that the state courts ignored clear evidence that the Food & Drug Administration would have forbidden it from placing a warning about redness, rash and blisters on their label and arguing that the Massachusetts decision conflicted with one from the Chicago-based U.S. Court of Appeals for the Seventh Circuit. In opposition on behalf of the plaintiffs, CCL argued that not only did not clear evidence exist that the FDA would prosecute Johnson & Johnson for providing a warning that would have spared Sammie her nightmare, but that subsequent FDA actions requiring warnings about redness, rashes and blisters on the label supported the plaintiffs. Moreover, the claimed conflict between appellate courts was an imagined one, given that the essential holdings of the two courts were the same.

CCL’s Robert S. Peck served as counsel of record on the Supreme Court brief, where he worked with Michael Bogdanow, Leo Boyle, Brad Henry, and Victoria Santoro of Boston’s Meehan, Boyle, Black & Bogdanow, P.C.

In a brief in support of summary judgment filed in a Florida trial court, CCL joined Florida lawyers in seeking invalidation of a Florida statute that extends the state’s immunities from lawsuits to the medical faculty of a private university when practicing medicine at Jackson Memorial Hospital, which is operated by a county agency. The declaratory judgment action argues that the legislature lacked authority to provide sovereign immunity to a private party and that the extension violates a variety of patients’ constitutional rights.

The disputed statute was enacted in 2011 to immunize medical faculty at the University of Miami from malpractice liability when scheduling their patients at Jackson. The immunity does not cover the faculty when they practice at the University of Miami hospital across the street from Jackson. In the immunized cases, a patient injured through malpractice must sue the State of Florida, whose liability is limited by the state tort claims act. Any liability assessed must then be reimbursed by the university.

The plaintiff’s summary judgment brief, filed January 15, argues that the Florida Constitution only authorizes the legislature to waive immunity, not extend it, constitutes impermissible special legislation, and prohibits the state from lending its credit to a private party. In addition, the brief contends that the extension of immunity violates the patient’s access to courts, jury trial, equal protection and due process rights. CCL’s Robert S. Peck represents the plaintiffs, along with Neal A. Roth and Rachel Furst of Grossman Roth, P.A.